Bases and extent of powers

Question 1

Bases of power

Answer 1

• The US SC’s powers are from the constitution, with the exception of judical review which came in Marbury v Madison (1803)
• UK SC’s power was created by the CRA 2005. Powers were given by parliament. The UK’s court of judical review is much more limited than that of the US, cannot declare Acts of parliament unconstitutional
• As the UK doesn’t have a codified constitution, it also reviews legal precendent and decides how it applies to new cases. Considers parts of the constiution that are written such as the HRA 1998, conventions and common law
• In contrast, the US SC is concerned with only the wording of the constitution

Question 2

Extent of powers

Protection of rights

Answer 2

• US SC can strike down laws that infringe the BoR, whereas the UK SC can only identify a law as being incompatible with the HRA 1998 and incite parliament to consider redrafting legislation
• Unlike the US BoR, the HRA isn’t entrenched in the British Constitution, so parliament can modify or scrap it
• Parliament could also withdraw from the ECHR, making it possible for parliament to pass laws that infringe human rights
• Rights are entrenched in the US, can only be removed via a constitutional amendment

Question 3

Extent of powers

Judicial review

Answer 3

• US SC’s power of judical review is large than of the UK
• Parliament can pass retrospective legislation to authorise actions the SC has declared ultra vires
• UK govts generally comply with decisions made by the Court, as they wish to be seen to be respecting the rule of law
• In the US, acts of congress are also subject to judical review, and can be struck down if found unconstitutional

Question 4

Extent of powers

Final courts of appeal

Answer 4

• There are two areas in which the UK has not acted as the final court of appeal. First was when the UK was part of the EU as its law had precedence. Cases relating to it would be head at the ECJ.
• Second, the UK is a signatory to the ECHR. People can seek justice for breaches of ther human rights at the ECtHR
• The UK has added the ECHR to its constitution as the HRA 1998, allowing individuals to bring human rights cases to UK courts. However they still have a right to appeal to the ECtHR